CHINA, INDIA AND INTERNATIONAL LAW
2018/2019, Semester 2
Modular Credits: LL4003V ( 5 ) / LL5003V ( 5 ) / LL6003V ( 5 )
The rise of China and India has resulted in a shift of power from the West to Asia, presenting, to many observers, the biggest opportunity for shaping a more just and equitable international legal order away from an existing order shaped through hegemonic power first during the period of colonialism and then during the ascendancy of the US. There is a movement away from these paradigms to a multipolar world in which China and India have begun to exert considerable influence. This course seeks to examine the potential that the rise of China and India, two ancient cultures, sharing much in common but yet having disparate modern political systems, will have on the future course of international law.
In general, the course will examine the rise of China and India and it’s impact on the international legal order. In particular, students will be led to discuss issues concerning (1) the origin and history of the relationship between developing countries and international law; (2) the rise of China and India and its challenge to the existing international legal order and legal norms, concerning issues relating to global governance, sovereignty, use of force, peaceful resolution of disputes, the international trade and investment system, etc.; (3) the international law aspects of domestic policies in China and India; and (4) the international law aspects of bilateral relations between China and India. The course will also concentrate on demonstrating the interaction between international relations and international law.
NUS Compulsory Core Curriculum or its equivalent
We will discuss the following six broad topics:
Background and framework: world order, international relations, and international law, and Chinese and Indian approachese to international law and the world order
China, India and the Westphalia system: sovereignty, non-intervention, R2P and the Five-Principles of Peaceful co-existence, including Use of force, territorial disputes, and China-India bilateral relations
China, India and regional order and institutional building in Asia
China, India and global governance
China, India and the international economic order
Impact of China's and India's domestic developmental models on their International behaviors
TOPIC 1: INTRODUCTION: WORLD ORDER, INTERNATIONAL LAW, AND THE RISE OF CHINA AND INDIA
The evolution of the international society and world order
The role of international law in the contemporary world order
Approaching international law from the lenses of international relations: realism, liberalism, and institutionalism
Impact of the rise of China and India on the world order: the romantic version and the realist version
Introduction to China-India relations
Questions and Thoughts
Familiarize yourself with the following concepts: international order, world order, global governance, power, power transition, hegemony, security.
What is the current international order? What is the role of law in this international order?
What does it mean that a rising power "challenges" the existing international order?
Is China a revisionist power who wishes to overthrow the existing international order?
What is the role of international law in China's foreign policy?
Is the articulation of the Principles of Co-existence and Harmony under the Heavens a sham to cloak the pursuit of national interests by China and India?
TOPIC 2: CHINESE AND INDIAN VIEWS OF INTERNATIONAL LAW AND WORLD ORDER
Traditional Chinese view of world order and international law
Traditional Indian view of world order and international law
Foreign invasion, colonization, and China’s and India’s early encounters with international law
Contemporary Chinese and Indian views of international law
International law in the domestic legal orders in China and India
TOPIC 3: CONCEPT OF SOVEREIGNTY AS THE BASIS OF SELF-PROTECTION AND RESISTANCE, AND FIVE PRINCIPLES OF PEACEFUL CO-EXISTENCE AS DEFENSIVE NORMS
Chinese resistance to the emergence of global rules of governance has been strong. India has an ambivalent resistance as it is less resistant to the movements in the human rights sphere. But, initial notions of sovereignty are strong in both states particularly in the economic sphere as evidenced by the nationalization programmes. But, softer approaches come to be taken in both states when it comes to the liberalization measures adopted in the 1990s. The stances of both states to liberalization must be noted. Here, the emergence of the two states as economic powers leads to adoption of legal stances both domestically and in international law.
But, sovereignty is conserved by China. Its views on the emergence of ius cogens, on the notion of sovereign immunity (eg. recent Hong Kong decision) are strongly affirmative of sovereignty. Also, need to take such stance when it comes to human rights both internally due to dissent and externally due to Tibet.
India is ambivalent. It is defensive when it comes to Kashmir and internal civil strife. But, its role in ending apartheid in South Africa has been strong. Its acceptance o human rights norms internally also has been supported by strong political movements. The role of TWAIL, which is largely and Indian initiated academic movement, must be noted. No significant Chinese contribution to TWAIL exists. There is a strong African component.
The stress on sovereignty by China. One traces this to past dealings, particularly to the subjection of China after the Opium War to the practice of extraterritoriality. “Pain and humiliation” of such subjection.
Struggle against colonialism. Chinese support and Indian leadership. Support for decolonization. The Declaration on Granting of Independence to Colonial People. After that, support for economic self determination. China nationalized without compensation on the basis of ideology of state ownership of property. Supported nationalization with low compensation. The New International Economic Order and the restructuring of the global economy. Until 1979, when fervour ends.
Third World leadership. TWAIL: China’s relative absence in.
The communist ideology and communist attitudes to international law. Theory of auto-limitation as the basis of international law. View shared by Chinese and Soviet scholars emphasizing treaties as the basis of international law.
Chinese adherence to the view that the Charter of the United Nations emphasizes sovereignty. Artice 2(4) and Article 2 (7).
This accords with the positivist vision of international law but not with the view that many modern international lawyers hold that sovereignty has been eroded by human rights and by globalization.
But China adheres to the Five Principles of Co-existence. It was first articulated in the 1954 Treaty between India and China relating to Trade in the Region of Tibet.
The five principles are: i. Mutual respect for each other’s territorial integrity and sovereignty; ii. Mutual non-aggression; iii Mutual non-interference in each other’s internal affairs; iv. Equality and mutual benefit and v. Peaceful coexistence. These five principles are broadly consistent with Westphalian sovereignty.
The five principles and Panchasila at the Bandung Conference. Sovereignty becomes central to developing nations as well but in a very attenuated form.
Chinese scholars interprete the UN Charter as consistent with these five principles and regard the United Nations system as consistent with the Chinese vision of the world.
China resists three ideas that India seems to accept along with other states of the world. The resistance is based on sovereignty.
(i) That sub-state groups like the Tibetans and the Muslims in Xinjiang have rights in terms of international law.
(ii) That neo-liberal ideology has brought about common norms relating to the free market and that these should be recognized.
(iii) human rights are more important than sovereignty and that advances in human rights have eroded the concept of sovereignty.
(iv) there is an emergence of standards of global governance based on democratic legitimacy.
China rejects all four trends that modernists would claim. The Indian practice differs on each of these four propositions.
On (i), the Chinese and Indian practices are similar. The Chinese would readily create autonomous regions though there is the charge that there is Han migration into these autonomous regions. India creates autonomy through its federal system. Both states would renounce secession. Secession will be a modern problem and will pose problems for both states.
(ii) despite their open door policy, neither China nor India adopt a free market approach as the major model for their economies. The claim that China progressed because of an adoption of a market economy appears to be without foundation. China practices what is described as state socialism, which is ownership of production through state companies and by well chosen national champions. India seems to be similar. China has two large sovereign wealth funds. Its state petroleum companies are aggressive seekers of energy.
India also practices state capitalism to a degree. Its private national champions like Tata and HMT are promoted and markets are kept from external competition. The feature of state capitalism is to use profits for political purposes.
On human rights, China and India differ. India has accepted the modern human rights movement fully, with its Supreme Court receiving most of its norms into domestic law.
India does not accept that domestic sovereignty shields a state from international scrutiny. It was in the forefront in the struggle against apartheid beginning from 1948, denouncing South African claim that the policy was one of domestic sovereignty. But, Kashmir poses a problem for the Indian stance.
China has not supported intervention in other states and condemned the NATO intervention in Kosovo. It is ambivalent when persons of Chinese origin are attacked in other countries. Compare India and Fiji.
China rejects notions of democratic legitimacy as a test for international norms. It rejects democracy as constituting the standard of governance. It works on the basis of a plurality of systems giving place to its own system.
Is it important for the rest of the world that China and India support common norms of international order relating particularly to human rights, the environment and economic affairs? Should they have autonomy to decide on these issues?
TOPIC 4: INTERNATIONAL CONFLICTS, TERRITORIAL DISPUTES, AND THE USE OF FORCE
The obvious and continuing source of conflict is the disputed border between China and India. The legal conflict reflects China’s position on unequal treaties. The Chinese claim to Arunachal Pradesh irks relationship between the two states.
Conflicts will arise in the maritime sphere. The competition to control the Indian Ocean could strengthen. Indian entry into the South China Sea will also provide sources of friction. The Straits of Malacca will assume significance. The Straits of Taiwan does not concern India but the strategy of containing China will increase Indian involvement. Again, these conflicts have legal dimensions.
Conflicts in the pursuit of energy and natural resources will intensify. Both states will seek to invest in Africa and elsewhere, intensifying conflicts. The contract methods used will differ and show disrespect for human rights and a negation of ideas of economic self-determination hitherto expressed by both states.
Investment treaties will assume a new role with China and India being the capital exporters protecting their investments. Both states may use trade laws against developing states.
The views taken on the use of force have undergone dramatic changes in recent times. The post 9/11 events saw a loosening of standards in the fight against “terrorism” justifying the use of harsh measures against secessionist groups. Humanitarian intervention became a broader concept as used in Kosovo. The Bush Doctrine was announced. Secessionist violence affected both India and China. This segment looks at the views taken by India and China to these different developments.
INDIA AND CHINA: HOSTILE POSTURES AND THE LAW
The Law on Territorial Claims.
Acquisition through conquest and control. Island of Palmas Case.
Doctrine of intertemporality.
Acquisition through discovery. Clipperton Island Case. Sipadan Island.
Modern role of self-determination.
Western Sahara Case
. Both in Xinjiang, Tibet and Kashmir, the problem arises for China and India who firmly deny the right beyond colonial context.
Birth of Pakistan and Independent India. PRC in 1949. India first to recognize PRC.
The border dispute. Starts during imperial days with the drawing of different boundary lines. Different imperial policies in the context of conflict between Russia and Britain for control. The principal line in contention now is the McMahon line drawn in 1913 agreed to by Tibet but not by China. China regards the line as involving an unequal treaty. The doctrine of unequal treaties.
In 1950, China takes over Tibet. In 1954, Nehru claimed Aksai Chin as Indian. No Chinese protest. In 1954, Five Principles stated in treaty. In 1956-57, China built a road through Aksai Chinn connecting Xinjiang and Tibet. In 1959 Dalai Lama flees to India.
1962 war. Line of control established with withdrawal from Arunachal Pradesh; still claimed by China.
Basis of claims. Historical contacts. Rao in ICLQ. China largely through Tibet. For the present stalemate. Both states maintain armies at line of control.
Problem of self-determination and Tibet. Is there a right to secession in international law?
String of Pearls and the Indian Ocean.
Importance of the Indian Ocean for China. Access to the Ocean and the Straits of Malacca.
The encirclement of India.
Is there a counter through the encirclement of China.
TOPIC 5: TERRITORIAL DISPUTES: THE SOUTH CHINA SEA ARBITRATION CASE
South China Sea, the Claims, and the History of the Disputes
The Philippines vs. China Arbitration Case on the South China Sea
Post-South China Sea Arbitration Development
South China Sea, Regional Security in Asia-Pacific, and the Role of International Law
South China Sea Arbitration Case’s Implications on China’s Attitude toward International Law
South China Sea Arbitration and the Limit of International Law
TOPIC 6: China, India and International Human Rights Standards
The historical evolution of human rights
Human rights in international law and international relations: legitimacy, justice, and power politics
Western discourses on human rights in China and India
Chinese and Indian discoures on human rights
Whither universal human rights standards?
Topic 7: China, India and the International Economic Order
The Post-War Liberal International Economic Order and Institutions: The Bretton Woods System
The New International Economic Order: Rise, Demise, and Rise Again?
The BRICS Order and the BRICS Development Bank
China-led Asian Infrastructure Investment Bank
China's New Silk Road Projects: The Silk Road Economic Belt and the Maritime Silk Road
China and India in the WTO and Regional Trade Agreements
Whither the International Economic Order?
Class participation & presentation - 30%; Research Paper (7000 words) - 70% (Due Thursday 18 April 2019, 9am).
Students who are taking or have taken LL4003.
Workload Components : A-B-C-D-E
A: no. of lecture hours per week
B: no. of tutorial hours per week
C: no. of lab hours per week
D: no. of hours for projects, assignments, fieldwork etc per week
E: no. of hours for preparatory work by a student per week
Reading materials for each week's class will be uploaded at least one week in advance.